01984745
03-08-2002
Sarah V. Peebles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sarah V. Peebles v. United States Postal Service,
01984745
03-08-02
.
Sarah V. Peebles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984745
Agency No. 4D-270-1141-95
Hearing No. 140-96-8276X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her formal complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 ( Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether complainant has proven, by a preponderance
of the evidence, that she was discriminated against on the bases of race
(Black) and disability (physical condition due to medication prescribed
for psychotic symptoms) when: 1) from February 6, 1995 through March 18,
1995, she was not allowed to work; and 2) from March 20, 1995 through
January 1996, she was only permitted to work four (4) hours per day.
BACKGROUND
The record reveals that complainant was employed by the agency as a
Full-Time Regular Distribution Clerk, PS-06, at the Northridge Station in
Raleigh, North Carolina. Complainant alleged that, due to job related
stress, she was assigned to work at the Hilburn and Crabtree postal
facilities in Raleigh, North Carolina. She stated that her light
duty assignment lasted from November 1994 through February 6, 1995.
She asserted that, on February 6, 1995, she was told by the Station
Manager at the Hilburn postal facility that she was no longer on light
duty. She indicated that the Station Manager sent her home that same
day and advised her that she needed medical documentation to return and
continue working the light duty assignment.
Thereafter, complainant asserted that she provided medical documentation
to the Occupational Health Nurse Administrator (OHNA) and that the OHNA
wrote her back and stated that there were no jobs available that fit
her work restrictions. Complainant reported that she was out of work
on leave without pay (LWOP) from February 6, 1995 through March 18, 1995.
Complainant also noted that there was a misunderstanding relative to
her restrictions and the number of hours she could work. According to
a statement from Dr. M., dated in October 1993, the private physician
described complainant as having a diagnosis of a delusional disorder after
reviewing a detailed psychiatric evaluation by Dr. C. He recommended
that the complainant work 9:00 a.m. to 5:00 p.m. daily at the Creekside
facility. In a statement from Dr. Z. dated in February 1995, the private
physician reported that he has been treating the complainant for insomnia,
depression, stress and anxiety for several years. He expressed that,
due to her emotional problems, it was recommended that the complainant,
among other things, not work in a situation where she is required to
stand for more than four (4) hours continuously and not to lift over
twenty (20) pounds. He noted that the complainant was on medication for
her symptoms, and that these medications had side effects. He reported
that his recommendations be implemented on a permanent basis and that
it was his understanding that Dr. C. made similar recommendations.
In an undated Fitness-For-Duty Evaluation, Dr. L. examined complainant
and reviewed her psychiatric history. Dr. L. concluded that she
suffered from a psychotic disorder that seemed to be under control.
He stated that the restrictions requested by her treating psychiatrist
were justified in terms of her needing more structure, more predictable
daytime working hours, as well as a predictable sleeping schedule.
He also commented that the physical restrictions of not being able to
stand a certain amount of hours or being able to lift past a certain
amount of weight were justified in terms of her using antipsychotic
medications. He noted that antipsychotic medications like Proxlixin
can indeed produce side effects ranging from orthostatic hypotension,
lightheadedness and dizziness especially when the person has to exert
him/herself, as well as to bend and change positions frequently. Based on
his evaluation, Dr. L recommended that complainant be continued on the
light duty restrictions on a permanent basis.
In response to the complainant's allegations, the Manager of Customer
Services (Manager) stated to the EEO Counselor that he did not perceive
the complainant to be physically disabled although he was aware that
she had restrictions on her work duties. He also stated that it was his
understanding from the Postmaster that he was suppose to provide her only
four (4) hours per day of work. Complainant complained about only being
allowed to work for four (4) hours. The Manager averred in his affidavit
that, when complainant complained, he had to keep her as long as there
was a casual employee working. He reported that, when complainant came
to work, she would, therefore, work approximately six to seven hours a
day rather than the four (4) hours he was supposed to provide for her.
The OHNA reported to the EEO Counselor that she did not discriminate
against the complainant based on her race or disability. She stated that
she followed the normal procedures for light duty requests and spoke with
several managers concerning complainant's request. She mentioned that
complainant was granted light duty on several occasions, and was sent for
a Fitness-for-Duty examination after she requested permanent light duty.
The complainant sought counseling and subsequently filed a formal
complaint on January 4, 1996. At the conclusion of the investigation,
the agency informed the complainant of her right to request a hearing
before an EEOC Administrative Judge (AJ), or alternatively, to receive
an immediate final decision from the agency. The complainant elected
the former. As such, the case was forwarded to the appropriate EEOC
District Office and assigned to an AJ. After examining the evidentiary
records of this case, the AJ determined that there were no material
facts in dispute, and therefore issued a decision without a hearing
finding no discrimination.
Specifically, the AJ found that the complainant failed to establish a
prima facie case of discrimination based on race in that she failed to
show that she was treated less favorably than similarly situated employees
outside of her race. Moreover, the AJ concluded that complainant failed
to present any persuasive evidence to support an inference of racial
discrimination. As to complainant's claim of disability discrimination,
the AJ determined that complainant failed to establish a prima facie case
of disability discrimination, in that she failed to demonstrate that
she is an individual with a disability under the Rehabilitation Act.
However, the AJ also noted that, even assuming the complainant had
established a prima facie case, she failed to show that the agency's
articulated reasons for its actions were pretextual. The agency's final
decision adopted the AJ's findings.
On appeal, the complainant argues that the AJ erred in her decision.
She claims that she has been the victim of the agency's unfair practices
and that two white females, a light duty employee and a casual employee,
were treated differently than she. Specifically, she states that she was
not permitted to work an eight-hour day as compared to other employees.
ANALYSIS AND FINDINGS
Summary Judgment
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, we find that the AJ properly determined that
there were no genuine issues of material fact. However, based upon our
de novo review, we find that summary judgment in favor of the agency is
not appropriate.
Reasonable Accommodation
In issue 1, complainant claimed that from February 6, 1995 through
March 18, 1995, she was not allowed to work. In essence, she alleged
that the agency failed to provide her with a reasonable accommodation.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Serv., EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability."
As an initial matter, the Commission notes that the AJ determined that
complainant was not an individual with a disability based on the fact
that complainant's limitations were due to her mitigating measures rather
than her impairment. In light of the Supreme Court decisions in Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel
Serv., Inc., 527 U.S. 516 (1999); and Albertsons, Inc. v. Kirkingburg,
527 U.S. 555 (1999), we find that it is appropriate to take into
consideration the mitigating measures used by complainant and the positive
and negative effects of those mitigating measures when deciding if she has
an impairment that substantially limits a major life activity. Sutton,
527 U.S. 471; Murphy, 527 U.S. 516. Upon review of the record, we find
that complainant has shown that she is an individual with a disability.
In particular, Dr. Z stated that due to her medication, complainant
can not lift over twenty (20) pounds and that light duty should be
provided on a permanent basis. See Report of Investigation (ROI),
at 32. Dr. L who performed complainant's fitness-for-duty examination
determined that the physical limitations noted by her physician are
justified as a side effect of using her medications. Furthermore, he
recommended that complainant work under these restrictions on a permanent
basis. Therefore, we find that side effects of complainant's psychotic
medications limit her in the major life activity of lifting. See Hebda
v. Department of the Interior, EEOC Appeal No. 01986569 (July 13, 2001)
(holding that complainant was an individual with a disability based on,
among other limitations, on his restriction on lifting twenty pounds).
Accordingly, we find that she has demonstrated that she is an individual
with a disability covered under the Rehabilitation Act.
Complainant also must show that she is a "qualified" individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). The term
�qualified individual with a disability,� with respect to employment,
is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. 29 C.F.R. � 1630.2(m). The term "position" is not limited
to the position held by the employee, but also includes positions that
the employee could have held as a result of reassignment. Therefore, in
determining whether an employee is "qualified," an agency must look beyond
the position which the employee presently encumbers. EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (Enforcement Guidance - Reasonable
Accommodation), No. 915.002 (March 1, 1999); see also Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix. to
The record indicates that complainant's light duty position ended on
February 6, 1995. Based on her restrictions, complainant contacted the
OHNA and requested a permanent light duty. The OHNA contacted agency
officials in various facilities in response to complainant's request for
light duty. Memoranda contained in the Report of Investigation show that
three agency officials could not provide light duty per complainant's
request. ROI at ex. 3. On March 1, 1995, the OHNA sent complainant
a letter informing her of the agency's decision to deny her request.
In particular, the OHNA noted that there were no positions available
which she could perform within her medical limitations. ROI at ex. 4.
Furthermore, the record indicates that the agency did provide complainant
with a light duty position within complainant's restrictions when an
opening was found on March 20, 1995. Therefore, from February 6, 1995
through March 18, 1995, we find that complainant was not qualified in
that there was no vacant position available which she could perform.
Accordingly, we conclude that complainant failed to establish that the
agency failed to provide her with a reasonable accommodation.
Disparate Treatment - Disability Based Discrimination
In claim 2, complainant alleges that she was not permitted to work
an eight hour day because of her disability. In analyzing a disparate
treatment claim under the Rehabilitation Act, where the agency denies that
its decisions were motivated by complainant's disability and there is no
direct evidence of discrimination, we apply the burden-shifting method
of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica
Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA,
179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order
to establish a prima facie case, complainant must demonstrate that: (1)
she is an "individual with a disability"; (2) she is "qualified" for the
position held or desired; (3) she was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d
916 (7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
As discussed above under reasonable accommodation, we have already
determined that complainant has shown that she is an individual with a
disability. Therefore, we turn to the issue of whether complainant is a
qualified individual with a disability. The record indicates that she
was reassigned to a vacant Clerk position in March 1995. The agency does
not indicate that she is not able to perform the essential functions of
this position. Accordingly, we find that complainant is qualified once
she was provided with the Clerk assignment. Complainant has clearly shown
that she was subjected to an adverse action in that she was not permitted
to work eight hours of work a day. Furthermore, complainant has shown
that the circumstances surrounding the adverse action gives rise to an
inference of discrimination. Accordingly, we find that complainant has
established a prima facie case of disability based discrimination.
The burden now shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its action. The Commission notes that the
investigator failed to obtain an affidavit from the Manager or the OHNA.
Instead, the record contains unsworn statements that were told to the
EEO Counselor as part of the informal resolution process which were
memorialized by the EEO Counselor in the EEO Report. The Manager informed
the EEO Counselor that he was told by the Postmaster that complainant
was only to work four hours a day. Because of complainant's complaints
of working a short day, the Manager allowed her to stay working for two
to three more hours but still not the full eight hour day. We find that
the agency has articulated a legitimate, nondiscriminatory reason for
its action as to claim 2.
The burden now turns to complainant to show that the agency's reason
was pretext. We find that complainant has met her burden as to claim 2.
The agency's reason was that they limited her work day to four hours
because of her medical documentation. However, complainant showed that
nowhere in her medical documentation was she limited to working four
hours. She was limited in standing for four hours. These limitations
are not the same. Therefore, the Commission finds that complainant
demonstrated pretext for disability-based discrimination.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable), leave, and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency shall consider taking disciplinary action against
the Manager for the discrimination perpetrated against complainant.
The agency shall report its decision. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
3. The issue of compensatory damages is REMANDED to the Hearings Unit
of the EEOC Raleigh Area Office. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that complaint file have been transmitted to the
Hearings Unit. Thereafter, the Administrative Judge must be assigned
in an expeditious manner to further process the issue of compensatory
damages in accordance with the regulations.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Northridge Station in Raleigh,
North Carolina, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
_03-08-02_________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Postal Service, Northridge Station, Raleigh, North
Carolina, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The United States Postal Service, Northridge Station, Raleigh, North
Carolina, has been ordered to remedy an employee affected by the
Commission's finding that she was discriminated against on the basis
of her disability. As a remedy for the discrimination, the United
States Postal Service, Northridge Station, Raleigh, North Carolina,
was ordered to provide back pay and benefits to the employee and to
provide training to and consider discipline for the agency official
found to have discriminated against the affected employee. The United
States Postal Service, Northridge Station, Raleigh, North Carolina, will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The United States Postal Service, Northridge Station, Raleigh,
North Carolina, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614